Question for Ms Nicola Smith at the Home Office
Thank you for offering so readily to respond to my concerns regarding the deportation of vulnerable EU citizens over the last 2 years when I raised the matter at the joint meeting of Home Office and DExEU officials with representatives of the3milion and British in Europe on August 22nd.
At present, advice centres dealing with Polish and other EU citizens from the A8 group, including several consulates, are recording with growing dismay an increasing number of actual deportations and threats of deportations in the last 2 years among their citizens and clients. These incidents are also being viewed with considerable alarm by citizens from those same countries wondering if these deportations may be the thin end of the wedge for wider deportations that may follow after March 2019. Most concerned are those who have failed to obtain permanent residence for whatever reason or who are dismayed by current UK proposals to make permanent residence obsolete and replace it with settled status.
Examples of deportations include two categories of EU citizens
1/ those with no fixed abode or who are sleeping rough, and
2/ those with past criminal records or who face prosecution for new offences.
The first category is being pursued under the 1824 Vagrancy Act or face charges from Public Spaces Protection orders. These deportations are being carried out contrary to the rights outlined in EU Directive 2004/38/EC, even though the UK remains subject to EU directives and legislation at least until March 2019. Under this Directive new EU arrivals should seek to either support themselves or find work after the the first 3 months and could face deportation if after those 3 months they have failed to look for work or become a burden on the state by drawing solely on the resources of social services. However, the majority of those deported or facing deportation now are not new arrivals at all but long-term residents. They have included rough sleepers who are working but on low wages, self-employed looking for work, divorced partners, people who worked but have lost jobs due to alcohol abuse, etc. Some have drawn no benefits from the state at all. One example was a person found simply standing next to a sleeping bag. These expulsions have increased recently as the Home Office has acquired registers of the homeless and maps of areas they frequent from homeless charities and from local authorities. These EU citizens have the right to stay, either for the reasons cited above or because the UK has tolerated their presence over many years and they have de facto acquired rights unchallenged until recently by any legal institution in the UK. Some homeless people may of course welcome an opportunity to return to their own country but all the cases in question were involuntary deportations.
The second category are those who have had criminal records in the past, whether in the UK or in the country of origin, and following their conviction or court appearance are sent notice of a requirement to leave the country. This too is a transgression of EU Directive 2004/38/EC, Article 27, which maintains that restrictions on freedom of movement should be “proportional” to the actual threat to public security and the individual concerned represents “a genuine present and sufficiently serious threat” to the country. It is also a transgression of UK Border Agency Policy Notice EOPN01/2013 which interprets the above EU Directive to mean that both “minor offences” and “economic reasons” could not be considered justification for deportation. The same Border Agency Policy Notice also states that past criminal convictions in themselves do not justify expulsions.
As worrying as the issue of deportations is the policy of some hospital trusts and other NHS bodies which issue invoices to EU citizens for their services and thus selectively flout the Home Office current guideline which state that all EU citizens living in the UK or needing emergency treatment for their services are entitled to free access to the NHS. After correspondence and outside agency interventions, these NHS charges are often withdrawn, but it causes enormous distress to individuals, often with a poor knowledge of English, who receive invoices for several thousand pounds after a difficult operation or after childbirth.
These actions by Home Office and NHS officials are a concern because they transform EU citizens in the UK who are homeless or with criminal records or who otherwise feel vulnerable and intimidated, into potential outlaws seeking to avoid all contact with the authorities and aid agencies., Yet these actions contradict the EU’s guidelines, and also the UK’s own guidelines, while the UK is still a member of the EU, We are not sure if these transgressions are by design or just due to "overzealous" enforcement, but either way they undermine trust in the UK's own legislation. The recent revelation about some 100 deportation letters sent out erroneously to EU citizens reinforces that concern. Furthermore, current Home Office expulsions have ominous implications for the future. Many EU citizens have resided in the UK legally unchallenged for decades, have set up families, bought property, paid taxes, received benefits, served on juries,travelled in and out of the UK at various intervals and have had no reason to apply for permanent residence. In the case of citizens of the A8 countries many have worked here legally although they never registered for the Worker Registrations Scheme between 2004 and 2011, as it was a legal requirement for being eligible for benefits, but not for their employment or residence rights.
In our view, unregistered but legally resident EU citizens and their families, including those who are currently homeless or have a criminal record, or those who have fallen ill and claimed benefits, have acquired “de facto” residence rights over the years and decades. Yet following recent administrative decisions, such as being rejected for permanent residence, or their UK-born children being denied the right to renew their UK passports, there is increased concern that their right of residence, and that of their families, could be made null and void after March 2019, especially if their acquired rights to live in the UK are no longer respected and protected now. The Prime Minister’s promise to the3million group that ”no one who has made their home in this country will have to leave, their families will be able to stay together, and that people can go on living their lives as before.” should be fully honoured in the forthcoming negotiations, as set out in our "Joint Response to the Second Round". It should be made clear that those words should apply to any long-term EU resident in this country, whether a successful entrepreneur, a diligent NHS worker, a school pupil or a victim of homelessness, long term illness or other adverse circumstances..
A further reassuring statement by the Home Secretary that the current deportations have ceased and that all EU citizens residing would be eligible for life-long protection of their status, mutually agreed by both sides in the negotiations this year, would not just avoid the administrative and legal burden of creating a new scheme with reduced rights for more than 3 million EU citizens with their families in time for Brexit day, but would also be an encouraging incentive for fearful EU citizens not to avoid or resist obtaining their declaratory certificate of continuing entitlement. It would also be seen as a genuine humane measure which would reaffirm the UK’s reputation for fairness. I should add that there is no danger that this measure would set a legal precedent for the future. This is a unique situation in the UK’s history when the popular referendum result of June 23rd, 2016 obliged the country to break with long established rules of residence for EU citizens after Brexit, but not for those who had come here in good faith before Brexit to live and to contribute to the economic, social and cultural wealth of the United Kingdom and who therefore needed to have their existing legal status and acquired or "de facto" rights protected for their lifetime and that of their children.
Wiktor Moszczynski 27/08/2017